1/10/15

Finally, Something New Under the Sun! Notes on the Inter-American Court of Human Rights Ruling on the RCTV Case*

The decision of the government of Venezuela not to renew the concession of Radio Caracas Televisión (RCTV) was the subject of interesting discussions on the state of freedom of expression in that nation. The controversy eventually reached the Inter-American Court of Human Rights, which issued a ruling on the case, GRANIER Et Al (RADIO CARACAS TELEVISIÓN) VS. VENEZUELA (the RCTV case), on June 22, 2015. The court ruled against Venezuela, finding that there had been violations of freedom of expression, and ordered the State to return the equipment that had been seized so that the channel could go back on the air until a new license concession process could be conducted. Manuel Ventura Robles, now a former member of the Court, stated in his remarks that this is the most important sentence issued by the body in the field of freedom of expression.

I agree with his statement, though I cannot forget many other cases that had a clear impact on the exercise of this fundamental right on the continent. (For example, I recall cases regarding abuse of laws on insults or criminal defamation, or even prior restraint or violence against journalists.) I do fully agree with Ventura Robles that this sentence makes clear “the Court’s desire to avoid more violations of freedom of expression on our continent, reverse the case law from Mémoli vs. Argentina, and make it clear to the government [of Venezuela] how serious the violation [of freedom of expression] is.” As I will briefly show in the paragraphs that follow, in the ruling on the RCTV case, the Court has given us new standards for the interpretation of Article 13 of the American Convention on Human Rights (ACHR).

Those of us who have had the opportunity to litigate before the Inter-American Court of Human Rights on a regular basis, ask ourselves which elements of evidence are important as part of our efforts to bring allegations of violations of freedom of expression before the court. The RCTV case gives us a very valuable clue for responding to this question. It also offers some unbeatable advice to public officials: be careful what you say, because it can be used against you! It is worth noting that in paragraph 61 of the ruling, for example, the Court states that it had been proved that there was both “an ‘environment of intimidation’ generated by the statements of high-ranking government authorities against independent media outlets” and that, based on such statements, the failure to renew the concession was due to the fact that this outlet held “an anti-government stance.”

In regard to this last point, the defense that the Venezuelan government mounted during the trial and the way that the Court knocked it down are of interest. According to the state (paragraph 187), the decision not to renew the concession was based on “the democratization of the use of the broadcasting medium and plurality of messages and contents.” The Court recognized that guaranteeing pluralism is not only a legitimate end, but also a duty of the state. However, in this case, after analyzing the officials’ statements, the Court determined that there was an unstated end (punishing RCTV for its anti-government editorial line) and that this represented abuse of power by the authorities “given that a power granted to the State was used in order to editorially align the media outlet with the government” (paragraph 197). The ruling also states that “the true purpose was to quiet voices critical of the government, which, along with pluralism, tolerance and the spirit of openness, represent the demands of a democratic debate that freedom of expression seeks to protect” (paragraph 198).

Ultimately, the interesting thing is that in order to prove both elements (context of attack on the media outlet based on its editorial line and the decision not to renew the concession), the Court evaluated the statements of the officials. Keep that in mind for the future!

The sentence provides another clue for future litigators. Though it is not surprising but also not unimportant, the Court stated that “the media are true instruments of freedom of expression” (paragraph 148). It is clear that the media are legal entities, and this is the problem that the Court solved in this case: given that, as the court understands it, legal entities cannot be “victims” of a violation of rights based on the American Convention of Human Rights, it must be determined “whether a State action that affected the media outlet as a legal entity also had a certain and substantial negative impact on the freedom of individuals.” To that end, it is necessary to “analyze the role that the presumed victims play within the media outlet and specifically the way that they contributed to the channel’s communications mission” (paragraph 149). In the Court’s decision, it was determined that there were violations of rights of individuals related to the legal entity RCTV.

An innovative question for the Court’s case law (though the OAS Special Rapporteur for Freedom of Expressionhad anticipated this a few years ago) refers to the broadcasting standards that must be considered in order to provide the freedom of expression guaranteed by the American Convention on Human Rights. The Court refers to this issue broadly for the first time in this ruling.

In paragraph 165, the court recognizes “the authority and need of governments to regulate broadcasting activity… as long as they respect the guidelines imposed by the freedom of expression….” This activity of governments includes the key issue in this case: the decision regarding how concessions or license renewals for broadcasting space use are handled.

To that end, and given that –as the Court notes- the spectrum is very limited, distribution must be handled in a manner that ensures that there are media that represent “a diversity of visions or informative stances or opinions” (paragraph 170). The Court ends the paragraph by stating that “pluralism of ideas in the media cannot be measured based on the number of media outlets. It depends on whether the ideas and information transmitted are actually diverse and are addressed from divergent positions without a single vision or position.”

This must be considered during the processes of granting or renewing broadcasting license concessions. The Court ruled that the limits or restrictions derived from the regulations related to broadcasting must consider the guarantee of pluralism of the media given its importance for the functioning of a democratic society.

In other words, for the Court, the guarantee of pluralism is key for analyzing regulations on concessions and for the renewal of concessions that have already been granted. In regard to the latter, the ruling notes (paragraph 179) that there is no duty to renew broadcasting concessions in international law. On the other hand, based on this sentence it is clear that the Court will interpret concessions processes so that they are compatible with the American Convention on Human Rights. “All of these processes must be handled without discriminatory criteria that seek to limit the granting of concessions and they must be aimed at strengthening informative pluralism and respect for judicial guarantees” (paragraph 394). In the case of RCTV, the Court understood that the Venezuelan government had violated Article 13 of the Convention precisely because the decision not to renew was the result of an abuse of power.

In closing, I began with a mention of the Ventura Robles vote and I will end with a reflection that stems from his statements in this case. His vote is a dissenting one, and it is important to understand why this is the case even though he believes that freedom of expression had been violated by the Venezuelan State. He laments the fact that the Court did not find a violation of other rights, including the guarantee of the independence and impartiality of the Judicial Branch that would explain the violation of the right to ownership. Thirty years ago, when Ventura Robles was the Assistant Secretary of the Court, the body issued its Consultative Opinion No. 5, which taught us that freedom of expression is the cornerstone of democracy. As such, we must all exercise it and also defend it against even the smallest attempts to chip away at it. For that defense, we need a division of powers and especially independent judges. The defense of freedom of expression needs them.